Thailand’s Next Constitution Becomes Clearer

Although much of the negotiations within Thailand’s constitutional drafting committee, hand picked by the Thai military, will go on without public input, the outlines of the next constitution are becoming clearer as the drafting committee has begun to meet. In recent weeks, some aspects of the drafting have been covered – and even occasionally criticized – by the Thai media, and it is clear that, despite being picked by the military, a few drafters have concerns about the opaque drafting process and the possible rollback of democratic institutions in the next constitution. These concerned drafters are likely the ones leaking information to media outlets about some of the most controversial aspects of the probable next constitution, like writing a clause allowing for an unelected prime minister. Their leaks are not going to sway the majority of drafters, who are so staunchly pro-military that they will do anything the army says, but leaks have allowed the public to gain insight into what their next constitution will entail. (Reporters are technically banned from attending committee sessions and reporting on what the committee discusses.)

For one, a provision allowing for an unelected prime minister under certain circumstances is looking like a sure thing. Multiple people with connections to the draft committee privately say that leaving an unelected prime minister a possibility is a key objective of the new constitution. How and under what circumstances this person would be chosen remains unclear. A possible unelected prime minister is seen by the military and its allies as critical to stopping any Thaksinite party from dominating Thai politics again. An unelected prime minister could be appointed in some way outside of normal electoral politics when elites do not like what an elected government is doing. The appointee would almost certainly be someone trusted by the military and its allies to serve as an obstacle to any Thaksinite party’s legislation in Parliament.

The military, and the constitution drafters, surely assume that, no matter how they construct elections for the next parliament, a Thaksinite party will dominate the poll. Drafters have floated various ideas of new electoral systems, and I still believe the constitution will eventually create for Thailand a mixed-member, proportional representation system, like Germany’s. Yet even in a mixed-member proportional representation system like Germany’s, a Thaksinite party would still probably get as many MPs as it did in the last election under the old constitution. (Bangkok Punditanalyzed the prospects in Thailand under a German-style system, as compared to Thailand’s previous proportional representation system, which allocated more power to constituency votes rather than party votes than in a MMP system.)

In addition, the new constitution almost surely will give more power to Thailand’s courts, another potential block to the power of any Thaksinite party in a future Thai parliament. Although Thaksin briefly gained sway over the most important courts in the early 2000s, when judges surely feared that Thaksin was going to unseat the old Thai establishment, since the mid-2000s the courts have almost always gone against Thaksinite parties, leading some Thais to claim the courts had become capable of launching a “judicial coup.” Yet in the new constitution, the top courts, including the Constitutional Court, will get even stronger, according to reports in the Thai press and private discussions with several people close to the constitution drafters. The courts will thus have even more power to shape politics in a much more proactive way than is normal in most established democracies.

Strengthening the Constitutional Court, and making it the vehicle for breaking the toughest political deadlocks, also serves another purpose. The Constitutional Court could replace the Thai king as the final arbiter in a political deadlock, helping ensure that the Crown Prince, who is widely disliked by Thai elites, will not enjoy anywhere near the power current King Bhumibhol has wielded at times during his reign.